In light of the enormous disruptions caused to institutions of higher education by the COVID-19 pandemic, colleges and universities are facing myriad hard choices regarding the fall semester. College athletics poses a particular challenge given the inevitable close contact required between student athletes. Many universities are therefore considering altering, shortening, or eliminating seasons and post-season conferences. As they do so, however, they must keep in mind the possibility of equity challenges brought under Title IX. Given the financial strains COVID-19 has precipitated, universities may understandably wish to focus first on bringing back sports, such as football, that provide greater economic benefits. But bringing back certain male sports without giving female students comparable opportunities will open universities up to significant litigation and enforcement risks.
Title IX Standards for Athletics
Title IX prohibits sex discrimination in college athletics.[1] While programs need not provide identical benefits to male and female students, Department of Education (DOE) regulations do require educational institutions to "provide equal athletic opportunity for members of both sexes" overall.[2] DOE considers many factors when analyzing whether a university provides equal athletic opportunity. The first is "[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes."[3] This "effective accommodation" component forms the "heartland" of Title IX law in the athletics sphere.[4]
Other factors to be considered include provision of equipment, supplies, housing, dining, and training facilities; scheduling of practices and games; assignment and compensation of coaches; publicity; and travel opportunities.[5] These other factors form an "equal treatment" component of Title IX athletics standards.[6] Schools need not spend equal amounts of money on men's versus women's sports overall to meet either component, but DOE (and courts) "may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity."[7]
DOE's predecessor, the Department of Health, Education, and Welfare, promulgated an interpretation of its own regulations in 1979. These regulations provide greater context for the regulatory standards. [8] This Policy Statement lays out a three-part test for effective accommodation, which asks:
Whether male and female students have athletic opportunities "substantially proportionate to their respective enrollments";
If one sex has previously been and continues to be underrepresented in athletics at an institution, whether that institution still "can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex"; or
Whether, if it cannot meet either of the first two tests, the institution can nevertheless show "that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program."[9]
As DOE has since clarified, this test is disjunctive: "If an institution has met any part of the three-part test, [DOE's Office for Civil Rights] will determine that the institution is meeting this requirement."[10]
Under the first prong of the test, universities can comply with Title IX "simply by maintaining gender parity between its student body and its athletic lineup."[11] The other two prongs allow schools to comply without strict proportionality. Under the second prong, an institution must show that it actively works to expand its athletic programs for the underrepresented sex (usually women). Under the third prong, an institution must prove that the underserved sex simply has a lower interest level and is being accommodated in accordance with that interest level.[12] Courts have historically granted both the Policy Statement and the clarification controlling deference when interpreting Title IX in the college athletics context.[13]
COVID-Related Challenges
Universities must take Title IX concerns into account as they consider how to restart their athletic programs. For example, some schools have considered bringing back their biggest money-making sports first, especially football.[14] Doing so, however, would mean that schools would have far more male than female athletes next semester. For example, if a school brought back only its football and men's and women's basketball teams, it could have as many as 130 male athletes in the fall semester and only 13 female athletes. Courts are not likely to find that such a significant disparity meets the Policy Statement's standards. Universities will be unable to prove compliance under the first Policy Statement test, as the gender makeup of their athletic lineups would become severely disproportionate to that of their student bodies. And they would be diminishing rather than enhancing athletic opportunities for women, taking the second Policy Statement test off the table. Universities would thus have to prove that they were responding to a decrease in student interest and that women had become much less interested in athletics than men--a dubious proposition to put it mildly.
Institutions could also run into trouble if they limit athletic scholarships to the returning sports. If restrictions on sports violate Title IX, restrictions on scholarships may well violate Title IX as well.[15]
In addition, some schools are discussing forming alliances that would restrict travel for certain sports. However, such restrictions may well affect women's teams differently, depending on which teams are allowed to travel and in what manner. Under the Policy Statement, factors like the number of competitive events provided, modes of transportation, and length of stay during travel will be taken into account when deciding whether restricting travel creates unequal opportunities for women.[16]
Unfortunately for institutions concerned about the impact of COVID-19 on their budgets, neither the athletic regulations nor the Policy Statement make allowances for financial circumstances. Courts have likewise held that financial aid decisions and financial distress more generally do not constitute a defense to a Title IX equity challenge.[17] While "[f]inancially strapped institutions may still comply with Title IX by cutting athletic programs," they must do so in a way that ensures "that men's and women's athletic participation rates become substantially proportionate to their representation in the undergraduate population."[18] Nor do Title IX's regulations allow for any exemptions related to the pandemic.[19] Without a legislative or regulatory change, then, attempts to prioritize revenue-driving sports will likely run afoul of Title IX.
Title IX Litigation Risks As Campuses Reopen
Institutions should take particular care because Title IX presents a serious litigation risk. The Policy
Statement sets high substantive standards for gender parity in sports. And Title IX makes those standards easy for students to enforce. The Supreme Court has read Title IX to contain a private right of action.[20] Courts have held that this private right of action extends to the standards imposed by DOE's athletics regulations and Policy Statement, as they enforce Title IX's ban on disparate treatment by gender.[21] Students can therefore sue universities directly, without needing to rely on DOE.[22] Some Title IX suits require that the plaintiffs or the Department first provide the defendant institution notice and an opportunity to cure its violation, at least to receive damages[23]--but these requirements do not apply to athletics claims.[24] Title IX athletics claims are thus easy to bring as a procedural matter.
Broad remedies are also available for Title IX violations. For instance, many courts have held that--at least when plaintiffs can show a likelihood of success on the merits--the loss of opportunity to participate in college athletics constitutes irreparable harm.[25] Thus, if students can prove that their university's method of reintroducing athletics privileges men's sports over women's, they may be able to obtain an injunction.
Title IX claimants can also receive damages.[26] And though many courts have held that plaintiffs cannot obtain punitive damages for Title IX violations,[27] the statute does not cap the amount of actual damages plaintiffs can receive. Universities that do not properly balance their athletic opportunities as they begin to reopen may therefore expose themselves to class actions or other high-dollar damages suits.
For these reasons, universities must take great care to consider gender equity in their athletics programs as they begin to reopen. Several steps can reduce the risk of successful Title IX equity challenges. Universities should actively involve their offices of general counsel in discussions about how to phase in athletics. All decision-makers should also consider the relative allocation of the various factors that courts must consider under the Title IX regulations and the Policy Statement. Bringing back football will present special challenges because of the size of college football teams, the level of resources required to maintain them, and the lack of female equivalents. Universities therefore must pay careful attention to the regulatory factors when considering football's return. And universities should maintain consistent communication with their student bodies to gauge any concerns their students might have about how athletics will be phased in.
Jenner & Block has a large higher education practice and extensive experience representing colleges and universities in Title IX litigation. In addition to representing clients in court, we regularly counsel institutions on Title IX compliance issues and have reformulated policies for our clients in light of the ever-changing legal landscape on these questions. Finally, we have deep experience in litigating cases against government agencies arising out of government enforcement actions.
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[1] 20 U.S.C. 1681(a); 34 C.F.R. 106.41(a). The Department of Education's recent, much-publicized rule changing the standards and processes under Title IX for sexual harassment and assault claims does not affect the rules related to athletics. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, to be codified at 34 C.F.R. Part 106 (May 6, 2020), https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-
unofficial.pdf ("[T]he Department declines to address other topics outside of this original scope, such as pregnancy,
parenting, or athletics under Title IX ....").
[2] 34 C.F.R. 106.41(c). [3] Id. 106.41(c)(1). [4] Beasley v. Alab ama State Univ., 966 F. Supp. 1117, 1124 (M.D. Ala. 1997).
[5] 34 C.F.R. 106.41(c)(2)-(10). [6] Mansourian v. Regents of Univ. of California, 602 F.3d 957, 964 (9th Cir. 2010). [7] Id. 106.41(c). [8] See Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44
Fed. Reg. 71,413 (1979) ("Policy Statement"). [9] Id. at 71,418. [10] Department of Education Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test (1996), http://www.ed.gov/about/offices/list/ocr/docs/clarific.html ("Clarification") (emphasis added). [11] Cohen v. Brown Univ., 991 F.2d 888, 898 (1st Cir. 1993). [12] Id. [13] See Mansourian v. Regents of Univ. of California, 602 F.3d 957, 965 n.9 (9th Cir. 2010); McCormick ex rel. McCormick v. Sch. Dist. of Mamaroneck, 370 F.3d 275, 290 (2d Cir. 2004) (citing cases from the First, Third, Sixth,
Seventh, Eighth, and Tenth Circuits). [14] See, e.g., Greta Anderson, Pandemic Hits College Sports, Inside Higher Ed (Apr. 24, 2020),
https://www.insidehighered.com/news/2020/04/24/financial-crisis-related-coronavirus-hits-athletic-departments; Greta Anderson, Risks and Rewards of Resuming Fall Footb all, Inside Higher Ed (May 18, 2020),
https://www.insidehighered.com/news/2020/05/18/major-football-colleges-prepare-fall-season; Ross Dellenger, Fogging Machines, Contact-Free Facilities and Outdoor Weight Rooms: The 'New Norm' That Awaits College Footb all Players, Sports Illustrated (May 18, 2020), https://www.si.com/college/2020/05/18/college-football-coronavirus-campus-
preparations .
[15] 34 C.F.R. 106.37(c)(1) ("To the extent that a recipient awards athletic scholarships or grants-in-aid, it must
provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of
each sex participating in interscholastic or intercollegiate athletics."); Policy Statement, 45 Fed. Reg. at 1,415.
[16] Policy Statement, 45 Fed. Reg. at 71,416. [17] Horner v. Kentucky High Sch. Athletic Ass'n, 43 F.3d 265, 275 (6th Cir. 1994) ("[A] recipient may not simply plead limited resources to excuse the fact that there are fewer opportunities for girls than for boys."); Mayerova v. E. Michigan Univ., 346 F. Supp. 3d 983, 998 (E.D. Mich. 2018) ("financial hardship is not a defense to a Title IX violation"), appeal dismissed, No. 18-2238, 2020 WL 1970535 (6th Cir. Apr. 20, 2020). [18] Rob erts v. Colorado State Bd. of Agric., 998 F.2d 824, 830 (10th Cir. 1993); see Horner, 43 F.3d at 275; Cohen v. Brown Univ., 991 F.2d 888, 898 (1st Cir. 1993) ("If a university prefers to take another route, it can also bring itself into
compliance with the first benchmark of the accommodation test by subtraction and downgrading, that is, by reducing
opportunities for the overrepresented gender while keeping opportunities stable for the underrepresented gender (or
reducing them to a much lesser extent)."). [19] See Exemptions from Title IX, Dep't of Ed., Office for Civil Rights, https://www2.ed.gov/about/offices/list/ocr/docs/t9-
rel-exempt/index.html (listing Title IX exemptions). [20] Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979). [21] See, e.g., Biediger v. Quinnipiac Univ., 691 F.3d 85, 97 (2d Cir. 2012); Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 920 (7th Cir. 2012); Equity In Athletics, Inc. v. Dep't of Educ., 639 F.3d 91, 101-04 (4th Cir. 2011). [22] Fitzgerald v. Barnstab le Sch. Comm., 555 U.S. 246, 255 (2009). [23] See Geb ser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) ("[I]n cases ... that do not involve official policy
of the recipient entity, we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has
authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual
knowledge of discrimination in the recipient's programs and fails adequately to respond."). [24] Fitzgerald, 555 U.S. at 255; Mansourian v. Regents of Univ. of California, 602 F.3d 957, 968 (9th Cir. 2010) ("[P]re-
litigation notice and opportunity to cure is not necessary in cases alleging unequal provision of athletic opportunities in violation of Title IX."); Pederson v. Louisiana State Univ., 213 F.3d 858, 882 (5th Cir. 2000) ("[T]he requirement in the
sexual harassment cases--that the academic institution have actual knowledge of the sexual harassment--is not
applicable for purposes of determining whether an academic institution intentionally discriminated on the basis of sex
by denying females equal athletic opportunity."). [25] See Mayerova, 346 F. Supp. 3d at 997-98 (citing cases). [26] Franklin v. Gwinnett Cty. Pub . Sch., 503 U.S. 60, 76 (1992). [27] E.g., Mercer v. Duke Univ., 50 F. App'x 643, 644 (4th Cir. 2002); Doe v. Sch. Bd. of Miami-Dade Cty., 403 F. Supp. 3d 1241, 1269 (S.D. Fla. 2019); Benacquista v. Spratt, 217 F. Supp. 3d 588, 607 (N.D.N.Y. 2016); Minnis v. Bd. of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll., 972 F. Supp. 2d 878, 889 (M.D. La. 2013); see also Fryb erger v. Univ. of Arkansas, 889 F.3d 471, 477 (8th Cir. 2018) (declining to decide issue); Cherry v. Univ. of Wisconsin Sys. Bd. of
Regents, 265 F.3d 541, 547 (7th Cir. 2001) (same). But see Doe v. Fournier, 851 F. Supp. 2d 207, 223 n.9 (D. Mass. 2012) (finding that punitive damages are still available under 1983 in cases of reckless indifference).
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